Opinion
No. 10-05-00207-CV
Opinion delivered and filed March 29, 2006.
Appeal fromthe 170th District Court, McLennan County, Texas, Trial Court No. 2003-3411-4.
Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Chief Justice GRAY concurs in this judgment without a separate opinion)
MEMORANDUM OPINION
After a bench trial, Appellant Lawanda Bell appeals the trial court's termination of her parental rights to her three children, S.K.D.C., T.K.B., and I.J.W., complaining in three issues of the legal and factual sufficiency of the evidence. We will affirm.
Background
The Department of Family and Protective Services ("CPS" or the "Department") petitioned the trial court to terminate the parent-child relationship of Lawanda with S.K.D.C, T.K.B., and I.J.W. The rights of each child's father were previously terminated. The trial court signed an order terminating Lawanda's parental rights on March 24, 2005.
Along with findings that termination would be in the children's best interest, the termination order found two statutory violations: (1) that Lawanda knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children (TEX. FAM. CODE. ANN. § 161.001(1)(D)) and (2) that she engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children (TEX. FAM. CODE. ANN. § 161.001(1)(E)).
Factual Background
In August 2003, CPS received a report alleging that S.K.D.C, T.K.B., and I.J.W. were not properly cared for, were not clean, their home was not clean, and I.J.W. was not fed properly. George Davis, a CPS investigator, went to Hillcrest Medical Center, where one-month-old I.J.W. was receiving care, to discuss with Lawanda the need to set up family-based services. I.J.W., who was a low-birth-weight baby most likely due to Lawanda's tobacco use during pregnancy, was admitted to Hillcrest because he was dehydrated and not thriving. During his ten day stay at the hospital, it was noted that I.J.W. had only gained three ounces since birth and ate more when nurses fed him. The nurses considered Lawanda a "lazy feeder" because she did not feed the baby enough.
Because of the feeding problems, a social worker, Melissa James, worked with Lawanda during I.J.W.'s stay at Hillcrest. James witnessed arguments between Lawanda and Nathan Woods, the father of I.J.W. On one occasion, the Waco Police Department was called to the hospital due to an altercation between the two.
CPS next had contact with the children on September 10th when Lawanda called Davis to request diapers for the children. While at Lawanda's home to deliver the diapers, Estella Lloyd, a CPS caseworker, smelled marijuana and saw that the living room was "heavy with smoke." Lloyd contacted Davis, and he went to the home with a drug kit. Lawanda stated that she was outside hanging clothes and, without her knowledge, a friend who was watching the children smoked marijuana in the house. Lawanda also admitted to taking "one or two hits off a blunt" outside but not in front of the children.
On September 12th, Nathan Woods reportedly had another altercation with Lawanda and, allegedly fearing for his child's safety, took possession of I.J.W. CPS later discovered that Woods and I.J.W. moved in with friends who each had extensive criminal histories. On September 18th, Lawanda and the children again met with CPS officials. At that time it was noted that one of the children had a severe rash and scratch marks for which Lawanda could not account. On September 25, 2003, CPS returned to Lawanda's home and removed the children.
CPS put Lawanda on a Family Service Plan so that she could work toward getting her children back. The plan required Lawanda to regularly visit with her children at the CPS office and demonstrate the ability to bond with them, pay child support, submit to drug testing before visiting with her children, obtain employment, attend parenting classes, undergo a psychological evaluation, obtain a stable and clean home, and participate in weekly therapy. Dr. James Shinder, a psychologist, first evaluated Lawanda in October 2003. He recommended substance-abuse treatment, parenting classes, and individual counseling. Initially, Lawanda sporadically attended therapy and visits with her children. Approximately six to nine months before trial, Lawanda made an effort to improve. She began regularly attending therapy and the scheduled visitations with her children. She also completed a drug-treatment program, consistently tested negative for drugs, and moved into better housing. However, Lawanda failed to make progress in other aspects of the Family Service Plan and, based on an August 2004 evaluation, Dr. Shinder remained concerned about Lawanda's lack of basic parenting knowledge. CPS determined that it was in the best interest of the children to change its recommendation to termination of Lawanda's parental rights and to seek adoption for the children.
Standards of Review
Termination of parental rights is a drastic remedy and is of such weight and gravity that due process requires the petitioner to justify termination by "clear and convincing evidence." Spangler v. Texas Dept. of Prot. Reg. Servs., 962 S.W.2d 253, 256 (Tex.App.-Waco 1998, no pet.). This standard is defined as "that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Id.
In a proceeding to terminate the parent-child relationship brought under section 161.001 of the Texas Family Code, the movant must establish two elements by clear and convincing evidence: (1) one or more acts or omissions enumerated under subsection (1) of section 161.001 (termed a predicate violation); and (2) that termination is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001 (Vernon Supp. 2005); Swate v. Swate, 72 S.W.3d 763, 766 (Tex.App.-Waco 2002, pet. denied). The factfinder must find that both elements are established by clear and convincing evidence, and proof of one element does not relieve the petitioner of the burden of proving the other. Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976); Swate, 72 S.W.3d at 766.
Both legal and factual sufficiency reviews in termination cases must take into consideration whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the matter on which the petitioner bears the burden of proof. In re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002) (discussing legal sufficiency review); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (discussing factual sufficiency review).
In a legal sufficiency review, a court should look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. To give appropriate deference to the factfinder's conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. This does not mean that a court must disregard all evidence that does not support the finding. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence.
If, after conducting its legal sufficiency review of the record evidence, a court determines that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then that court must conclude that the evidence is legally insufficient.
J.F.C., 96 S.W.3d at 266.
In a factual sufficiency review, a court of appeals must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. Id.
[T]he inquiry must be "whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." A court of appeals should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. A court of appeals should detail in its opinion why it has concluded that a reasonable factfinder could not have credited disputed evidence in favor of the finding.
Id. at 266-67 (footnotes and citations omitted). We view the evidence in a neutral light when reviewing for factual sufficiency.
Termination Under Section 161.001(1)(D)
Section 161.001(1)(D) of the Texas Family Code states that the court may order termination of the parent-child relationship if the court finds by clear and convincing evidence that the parent has knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child. Tex. Fam. Code Ann. § 161.001(1)(D) (Vernon Supp. 2005). "Endanger" means to expose to loss or injury or to jeopardize. Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Threat means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment. Id. However, it is not necessary that the child actually suffer injury. Id. Although this provision addresses the child's surroundings rather than the parent's conduct, conduct by a parent or other resident of a child's home can produce an environment that endangers the physical or emotional well-being of a child. In the Interest of C.L.C., 119 S.W.3d 382, 392 (Tex.App.-Tyler 2003, no pet.).
George Davis testified that Lawanda's home was dirty, the children were not clean, and that he saw the children in a room full of smoke. He testified that Lawanda was not able to properly manage her money and often ran out of essentials for the children such as diapers and milk before the end of the month. Davis also testified that he was concerned about domestic violence and that he was aware that the police were notified several times as a result of disagreements between Lawanda and Nathan Woods. Dr. Shinder testified that Lawanda had a history of associating with men who were either abusive, involved in drugs, or incarcerated, such as the fathers of the three children. Lawanda's therapist, Dr. Stefanie Clawson, testified concerning Lawanda's family's extensive drug history, and the pattern of her family taking advantage of Lawanda by using her money to support their drug habits. Further, Lawanda has relied on her mother, a convicted felon and drug abuser, and friends such as Megan Calhoun, who admitted to smoking marijuana, to help take care of the children.
Although there is some evidence that Lawanda now resides in a better home, has set boundaries with her family, and has made efforts to associate only with people who can provide a positive influence in her life, we find that this evidence is not so significant that a reasonable trier of fact could not have reconciled this evidence in favor of its finding and formed a firm belief that Lawanda knowingly placed or knowingly allowed her children to remain in conditions or surroundings which endangered their physical or emotional well-being. Accordingly, Lawanda's first issue is overruled.
Termination Under Section 161.001(1)(E)
Section 161.001(1)(E) of the Family Code provides that a court may terminate the parent-child relationship if the court finds by clear and convincing evidence that the parent has engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangers the physical or emotional well-being of the child. TEX. FAM. CODE ANN. § 161.001(1)(E) (Vernon Supp. 2005). Endangerment under this section may be shown by evidence that a parent engaged in a "course of conduct" that endangered the child's physical or emotional well-being. In re J.O.C., 47 S.W.3d 108, 113 (Tex.App.-Waco 2001, no pet.). The manner in which a parent cares for other children in the family can be considered in deciding whether the parent engaged in a course of conduct that endangered a child. In re D.L.N., 958 S.W.2d 934, 939 (Tex.App.-Waco, 1997, pet. denied).
Dr. Floyd Barry testified that Lawanda had a history of drug and tobacco abuse during pregnancy and waited to receive prenatal care until late in her pregnancy with I.J.W. Further, testimony was presented that Lawanda smoked marijuana once or twice a month since the age of 18 and that she admitted to Dr. Clawson that it made her less attentive as a parent. Lawanda also has a history of abusing alcohol and, on one occasion, Nathan Woods allegedly removed I.J.W. from her house due to the fear that she could not properly care for him because she was intoxicated. Evidence was also presented that Lawanda failed to care for the basic needs of the children such as keeping them clean, changing their diapers, feeding I.J.W., and taking the children to scheduled doctor appointments.
In addition, there was considerable evidence presented at trial that Lawanda does not possess adequate parenting skills to care for the children. Dr. Shinder on two occasions tested Lawanda's basic parenting knowledge with an objective exam. Lawanda was not able to correctly answer a majority of the questions. Dr. Shinder testified that Lawanda "doesn't have a reasonable recognition of the obligations and responsibilities of a parent in regard to basic safety for children." Dr. Clawson acknowledged that Lawanda made progress in her drug treatment, set boundaries with friends and family, tried to establish a support system, and visited her children. However, Clawson also expressed concern about Lawanda's ability to parent the children and recommended termination of Lawanda's parental rights because of her inadequate parenting skills and cognitive limitations. We hold that the evidence is sufficient to show that Lawanda engaged in conduct or knowingly placed S.K.D.C, T.K.B., and I.J.W. with persons who engaged in conduct that endangered their physical or emotional well-being. Accordingly, we overrule Lawanda's second issue.
Best Interest
In determining whether termination is in a child's best interest, we may consider several factors, including, but not limited to: (1) the child's desires, (2) the current and future physical and emotional needs of the child, (3) the current and future physical danger to the child, (4) the parental abilities of the person seeking custody, (5) whether programs are available to assist the person seeking custody in promoting the best interests of the child, (6) plans for the child by the person seeking custody, (7) the stability of the home, (8) acts or omissions of the parent that may indicate that the parent-child relationship is not proper, and (9) any excuse for acts or omissions of the parent. Holley, 544 S.W.2d at 371-72. The burden is on CPS to rebut the presumption that the best interest of the child is served by keeping custody in the natural parents. In re K.C.M., 171 S.W.3d 472, 480 (Tex.App.-Houston [14th Dist.] 2005, no pet.).
Desires of the Children
The record does not reflect the desires of the children. S.K.D.C., T.K.B., and I.J.W. were ages four years, three years, and twenty months respectively at the time of trial.
Current and Future Physical and Emotional Needs
Tess Kuckleburge, a CPS caseworker, testified that Lawanda was unable to discipline the children and provide structure during her visits with the children at the CPS office. Lawanda did not seem to notice when the children left the room unattended and, on one occasion, treated S.K.D.C. harshly for spilling a drink. This evidence suggests that it is difficult for Lawanda to provide for the emotional needs of the children.
It is also doubtful that Lawanda can provide for the physical needs of the children. Lawanda has never been employed and has a ninth-grade education. Lawanda currently lives on Social Security benefits and other public assistance. Although in working toward getting her children back, Lawanda agreed to take the GED and find employment, she failed to meet these goals within the 18 months between the removal of the children and the trial. Further, Lawanda is not able to properly manage her money and provide the children with necessities.
Current and Future Physical Danger to Children
Lawanda contends that she did not engage in conduct that endangered the children. However, Lawanda admitted to smoking marijuana, smoking tobacco, and abusing alcohol during pregnancy. She admitted smoking marijuana once or twice a month while in possession of her children. Evidence of prenatal and postnatal drug abuse by a parent may be a ground for termination. In the Interest of R.D., 955 S.W.2d 364, 368 (Tex.App.-San Antonio 1997, pet. denied).
Lawanda also contends that she can provide a safe environment for her children and that she has a group of friends to help her with the children. However, as Lawanda testified, it was a friend who smoked marijuana in the same room as her children and, as previously noted, the friends upon whom Lawanda primarily relies for support also admit to regularly smoking marijuana. Lawanda also relies upon friends for transportation; however, several drive without a driver's license. Lawanda also drives without a license and has failed to obtain a license although encouraged to do so.
As previously discussed, Lawanda has a history of abusive relationships with men. Lawanda and Nathan argued in I.J.W.'s hospital room and Lawanda contends that Nathan trashed her house so that CPS would take her children from her. Lawanda consistently has chosen to associate with men who do not provide a stable environment for her children.
Parental Abilities
The record reflects that Lawanda does not have the necessary parental abilities to care for her children. Her therapist recommended termination of Lawanda's parental rights because, in her opinion, Lawanda lacks the basic knowledge necessary for parenting. Lawanda could not answer the majority of Dr. Shinder's questions designed to test her ability to care for her children. For example, Lawanda answered that a two-year-old was old enough to get an allowance while a fourteen-year-old needed assistance cutting meat at the dinner table. CPS officials also testified that she was not able to maintain structure and discipline in her supervised visits with her children. Further, Lawanda failed to properly feed I.J.W. The baby only gained three ounces in his first month and required hospitalization for failing to thrive.
Programs Available to Assist Person Seeking Custody
Lawanda attended parenting classes and counseling in which she learned some necessary parenting skills. However, Lawanda's therapist and CPS did not feel that she obtained the necessary skills to safely care for her children.
Plans for Child by Person Seeking Custody
Lawanda claimed that she planned to obtain her GED and employment in order to better care for her children yet she failed to do so before trial. She also planned to care for the children with the help of her friends.
Stability of Home
Lawanda moved to better housing before trial. Her new apartment is clean and would provide a safer environment for the children; however, Lawanda's new home is a one-bedroom apartment which would not accommodate her and the children. Lawanda planned to move to a larger apartment if the children were returned to her.
Parent's Acts or Omissions, and Excuses for such Acts or Omissions
The evidence relevant to these factors is discussed above.
Application of Best Interest Factors
In viewing this evidence, we hold that the trial court could have formed a firm belief or conviction that termination of Lawanda's parental rights was in the best interest of the children, particularly because the evidence shows that Lawanda endangered the physical and emotional well-being of the children by engaging in a course of conduct involving drug and alcohol use, failing to adequately provide for necessities for the children, and exposing the children to abusive relationships. Further, we find that termination is in the best interest of the children because the evidence shows that Lawanda does not possess the necessary abilities to care for the children. We hold that the evidence was legally sufficient and, despite Lawanda's evidence that she attended counseling, attended parenting classes, and completed a drug-treatment program, was factually sufficient to uphold the court's finding that termination of Lawanda's parental rights was in the best interest of S.K.D.C., T.K.B., and I.J.W. We overrule Lawanda's third issue.
Conclusion
We affirm the trial court's order of termination.